June 29, 2010

I see Drudge is featuring this clip, just over one minute long, in which you hear Senator Coburn making a memorable, colorful point and — for the clip-viewer — overshadowing Elena Kagan's perfectly conventional profession of dedication to judicial restraint:

The clip is taken out of context, and now it has a vigorous life of its own.

I'm wondering what other clips are gathering strength on YouTube and what sort of political career they will have. Here are clips that went up today.

163 comments:

I wish to speak to the substance of that clip itself. There's so much to say, but I will say just two things:

1. Coburn is absolutely right. Nothing in the Constitution gives Congress the power to tell people what food to eat. For the left, the Commerce Clause is an excuse to pass any regulation of any kind.

2. Congress needs to stop relying on the Supreme Court to determine constitutionality and exert its own constitutional power. Marbury is dumb and it's not true at all that the Supreme Court has any power to say what the law "is." That's the job of Congress. It's frankly embarrassing that each house of Congress does not have a committee on the constitutional propriety of the very bills they pass.

Coburn is the worst form of hack. Yes Senator, harp on the commerce clause... this is the same guy who wanted to stop the FDA from testing RU-486, who wanted to block a bill disarming the child kidnapping Lord's Resistance Army, who wanted a V-Chip in every television, who objected to NBC broadcasting Schindler's List.

What I am positing here and have posited many times in these threads is that government is this force that is going to be constantly invading peoples' lives and taking away liberties. The very words says so. Given this unfortunate fact, the best way to deal with it is to devolve as much government as possible as locally as possible, so that the people affected by the invasion and loss of liberty can most easily participate in the government if they so desire.

I realize that I open myself up to valid criticisms. Would I, for instance, allow Jim Crow laws or slavery? And the answer is no, because the Constitution validly protects against those things. But most things -- let's take abortion and the foods we eat -- do not rise to the level of constitutional protection (based, anyway, on the words of the document and not penumbras). So, if the state of Wisconsin wishes to have abortion or not have abortion, or if the city of Madison wishes to mandate three servings of vegetables a day, I am fine with that because people can change the law much more easily than they can at the federal level in a relatively smaller, relatively more intimate setting.

There's nothing in any clause of the Constitution that mentions abortion. Even the Supreme Court couldn't find anything, so its august members and clerks had to resort to the goofy penumbras and emanations. Therefore, there is nothing in the Constitution to back up the right to an abortion.

Coburn is right because the federal government has no business making laws about foods we eat. It has no business making law about abortions, either. That power properly rests with the states or, absent a state law, localities.

Kagan simply cannot fathom the idea that there is a limit to federal power.

So you're a lawyer advising somebody who is about to eat only Snickers bars all day and you say, "Don't worry. The Federal Food Police has never tried to send somebody to prison for this. This statute covers it. But don't worry, the Federal Food Police has never done it."

I really like this. Coburn looks like an idiot... at first. Then you look at the facts and see that his question is actually quite profound, and that he and Kagan are having a deep conversation about something that they're not really having a conversation about.

Kagan: "Sounds like a dumb law."

Coburn: "Yeah, I got one that sounds pretty similar to it that I think is equally dumb."

Montagne -- What would happen if the Supreme Court overturned Roe? Would abortion be illegal?

In the states that want to make it illegal. What is your point?

Drugs aren't mentioned in the constitution and the Federal government seems to love regulating those things. Which of the cons here will join with the Reason Magazine crowd and bitch about the supposed lack of a legal rationale for those laws?

You guys are just plain weird. You think every conclusion you come to is so far from arbitrary, so crystal clear, that it might as well have been spelled out in the stars or something.

Ritmo -- You are wrong. Congress would immediately make a law about abortion. Would that law withstand judicial scrutiny? An interesting and pertinent question, worth debating but not with idiots like you. Thanks for playing.

The Commerce Clause obviously covers most drugs because they are produced in one state and distributed in others.

I don't think Reason sets out a lack of rational so much as an accurate portrayal of the slowness of the process and the way in which the companies are in bed with the lawmakers.

Don't be a moron. Coburn obviously thinks the constitution should be/is the appropriate limit to keep legislators from doing self-defeating things, and in so holding this position, he seems to have no regard for the role of that grand conservative phenomenon called "common sense" in guaranteeing freedom and limiting what legislators would seek to do.

It's a stupid point. No one's going to regulate how much of a certain type of food you have to eat. You guys are losing more and more with these wacky memes.

As I said, you want to use the Constitution as a guidebook for all of life in its entirety, and you miss the point. It's a legal contract, not an astrology chart, not a bible, not the Dungeon Master's Guide.

An interesting and pertinent question, worth debating but not with idiots like you.

Anyone who is not a nerd with an intense interest in abstract legal theory is an "idiot" in your book. In the meantime, Coburn made himself look like a retard. You may not understand why, but that's your problem.

Meanwhile,

You are wrong. Congress would immediately make a law about abortion.

Which you and Coburn apparently think would be unconstitutional to do. Pick a fucking perspective and stick with it before commenting on the intelligence of others.

The issue is whether the federal government can make such a law, not whether the law is stupid.

No. The issue is really whether anyone cares and thinks that this represents a scenario even remotely approaching realistic.

Like I said, I'm sorry if my interest in injecting common sense into your sandbox of legal theory upsets you, but there you have it. Remind me now, which one of us is the idiot?

You think what you want. If you want to play silly go-nowhere games in Wonderland with Althouse, that's fine. Just stop pretending that it translates into a political perspective worth more than the pixels it's written on.

Which you and Coburn apparently think would be unconstitutional to do.

Yes. Thus the highly interesting issue that was at hand until you barged in and began yelling shrilly.

One other note. Drudge has popularized the clip. Drudge has shown himself to be a smart libertarian/conservative who obviously has an animus toward Kagan. Do you really believe that Drudge would have posted the clip as his headline story if he thought that it would make Coburn look stupid attacking Kagan?

It helps to think things through before you start regurgitating wildly.

Anyone who would listen to Coburn is an idiot. He is the worst kind of human being and a joke as a senator. This is a man who wants to go back to the days when gay people have no rights and any abortion, even the result of rape or incest, would be illegal. He called homosexuals devils and condemned them on the floor of the senate.I have a friend, a conservative one, who lives in Oklahoma and says that he is the laughing stock of the state. He is an evil man and has absolutely no business being on that committee and passing judgement on anyone.

Ok, sorry about my 12:25 post. A law guaranteeing abortion wouldn't necessarily be likely to be deemed unconstitutional, but you think it would be politically problematic. Mea culpa. I'm enough of a nerd to realize that.

But this seems to cut both ways. Abortion isn't going to come up in these interviews. So Coburn's need to, instead, talk fruits and veggies speaks volumes - on the current political futility of his party's ideology.

One other note. Drudge has popularized the clip. Drudge has shown himself to be a smart libertarian/conservative who obviously has an animus toward Kagan. Do you really believe that Drudge would have posted the clip as his headline story if he thought that it would make Coburn look stupid attacking Kagan?

It helps to think things through before you start regurgitating wildly.

Matt Drudge is not infallible. He's an obsessive muckracker who occasionally gets lucky in his aim to make every tedious political act seem like the next big scandal of our lifetime.

The issue is really whether anyone cares

You are here. You are spouting feverishly. Is this to be seen as evidence that you don't care?

Strange.

I am feverishly excited to learn that the Republicans think the that freedom to not eat vegetables is a winning selling point to voters in next fall's election.

And just because you're bringing out the legal nerd in me, isn't there a Commerce Clause issue when it comes to abortion? If it's ever "given back to the states", which is what the cons love to argue these days as the outcome of overturning R v W, going state to state in order to engage in doctor shopping certainly affects interstate commerce.

If you are of the opinion that there will be either one law of the land guaranteeing abortion or forbidding it, you are going expressly against the talking point of every Republican pundit who's opinion is taken seriously on this.

Coburn, in his three-squares-a-day mandatory hypothetical, was merely laying the groundwork for repeal of ObamaCare -- and heck, maybe even the commerce clause.

Repeal of the Commerce Clause. That's funny! That's hilarious, actually. Here we have a federal government that has passed no substantive constitutional amendments since 1971. Yet a member of the party that has some 40 seats out of 100 is laying the groundwork to change a bedrock principle.

Clearly there is something you're missing in believing Wickerd and all that jazz pertained exclusively to multiple sales. Or maybe you're just getting creative and flexing your chops at arguing a challenge to both.

Althouse seems to think this clip is unfair because of lack of context... not for nothing, it does seem suspicious, so I went and found the full video of Coburn's remarks (link goes directly to the fruits-and-veggies exchange):

And you know what? In almost 10 minutes of back and forth, Kagan never answered the question any better than she did in the 1:19 version. It should have been a very easy question to answer. Of course Congress does not have the power to pass such a regulation. But Kagan would not say that. She would allow us to hang ourselves. That is to say – considering we do not live in a direct democracy – she would allow those representing (at most) a majority of the people to hang all of the people.

Now, I see this Ritmo fellow has been arguing that Coburn's hypothetical law is not realistic and Congress would have to consist of a bunch of morons to pass it. That may be true, but it's totally irrelevant because it is the principle that Coburn is getting at here. Such a law would be a gross violation of personal freedoms, far afield of anything the founders would have thought acceptable; and if Kagan believes that Congress has the power to grossly violate personal freedoms in such a way, then in what other more "realistic" ways would/does she find it acceptable for Congress to violate us?

I keep hearing that the food police are coming to get me, and if that's for real I oppose it (*). Meanwhile, conservatives are busy trying to force us to cling to blue laws, restrict when I can buy booze, and pass laws against sodomy. They also have pulled everything they can to stop casinos in Ohio. And they also seem to keep sticking their noses into strip clubs. And on and on. Conservatives are constantly sticking their noses in.

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(*) Though I do support laws to protect animals from being tortured and abused in the meat industry. I think Jesus and anyone with basic morals would agree, but conservatives never seem to. They don't even seem to support any quality standards for the food I buy in my grocery store, and I like to know that the food I am buying will not be tainted and give me food poisoning. I guess conservatives are in the tank for food industry people who don't want high health standards for the food we are sold.

Suppose keeping the Federal government's "hands off our bodies" (as you put it) results in a debt for each tax payer of $1,000... is that an acceptable price to pay?

$10,000?

$100,000?

$1M per person?

At some point the burden of the debt upon the public and the need for citizens to service it would damage our society and break down our institutions-- we would all be working every single day for the government. We would be just like the good ole' Soviets.

So there must be a limit somewhere, right? Or would you choose destruction of our country before giving up that Federal pseudo-right to local control? Where is the line?

Seven Machos said..."Coburn is absolutely right. Nothing in the Constitution gives Congress the power to tell people what food to eat. For the left, the Commerce Clause is an excuse to pass any regulation of any kind."

But then again, Coburn is asking a really dumb question. He is supposing that people don't act in the best way but in the silliest way and I guess congress does here and there...and if Coburn is involved it always borders on foolish.

But to place a nonsensical hypothetical in front of the nominee as an "if then" type of statement that goes after the "left's" love or regulation is moronic.

I am sure, 6-nachos, that you understand the difference between regulations, regulatory law and law ... or maybe not... I dunno from reading his comment.

As to his second "observation"...that congress needs to exert its powers and stop relying on SCOTUS to determine constitutionality.

Gosh if we could do away with the executive as well...well just think....an unchecked congress to lead the country.

I call your attention to Terri Scheivo ... remember? Now there is a real example of the right wing legislative baffoons in action.

I do not know what videos generated from the hearings will go viral, but I suspect it'll be one in which Senators asking questions are substituted with Muppets and Kagan is dubbed guessing at clues in a game of charades.

"Gosh if we could do away with the executive as well...well just think....an unchecked congress to lead the country."

Ironically, an unchecked Congress is exactly what Coburn is expressing concern about, and his concern seems warranted. And if Coburn himself is occasionally among those who need checking, that certainly doesn't disprove the point.

You could have argued it was a nonsensical hypothetical if Congress hadn't already, this year, passed a law mandating that people purchase things and Congress thinks are good for them. You can't intelligently argue that "you must purchase and eat healthy food" is an impossible law when "you must purchase medical insurance" is already a law on the books. After all, healthy eating is much more important to your health than medical insurance is, and costs a lot less.

Suppose keeping the government's "hands off our bodies" at the Federal level...

It's a serious question. I would really like to know if Althouse has a debt-price at which she would allow the pseudo-right of abortion to be transferred to more local control.

--

Also, on a separate note, why must the federal government not prevent a woman like you from having a suitably-early abortion, Althouse, while it is okay with you that the same federal government prevent me from obtaining the only effective medicine for treatment of my rather debilitating medical condition?

The federal government's hands are very much on my body right now, you know....

Tenants have rights, too, particularly when they are there only as a direct result of the actions of the landlord.

In common law, as I understand it, there isn't a recognized right to occupy somebody else's property unless there is a formal or informal tenancy agreement in place. Barring specific state or federal laws to the contrary, I *do* have the right to kick someone out of my house, even if I invited them in, and even if they won't survive long on the streets.

Rev -- Can you kick your nine-year-old child out of your house? Why not? After all, there is no formal tenancy agreement.

Also, in practice, you would have to go a judge to get your rights honored at common law. Therefore, you must admit, if you use property rights as your analogy, that a pregnant woman wishing to get an abortion must get it approved by a judge.

Further, all common law is based on a single, solitary idea: what a reasonable person would do in a given situation. And, of course, common law is the lowest form of law; it is always superseded by legislation.

Rev -- Can you kick your nine-year-old child out of your house? Why not? After all, there is no formal tenancy agreement.

Under common law, yes, I'm pretty sure you can do exactly that.

Also, in practice, you would have to go a judge to get your rights honored at common law.

Common law generally recognizes the property owner as having the right to forcibly evict trespassers themselves.

Therefore, you must admit, if you use property rights as your analogy, that a pregnant woman wishing to get an abortion must get it approved by a judge.

Not as I understand it. If you come home and find a stranger in your house, you don't have to go to court to seek permission to remove him. You can -- with the exception of those jurisdictions which have curtailed property rights -- grab him and throw his ass out the door, and if he has a problem with that he can take YOU to court for redress.

Further, all common law is based on a single, solitary idea: what a reasonable person would do in a given situation.

I'm not sure where you got that idea from.

And, of course, common law is the lowest form of law; it is always superseded by legislation.

Yes, I noted that my statement didn't apply if there was a law on the books protecting the squatter.

The whole "the government would never try to enforce what you can/can't eat thing" thing is entirely wrong. Check out the raw milk wars.

The FDA maintains the position that we have no absolute right to eat the foods of our choosing, including raw milk from our own cows, or from farmers we know and trust. It's still legal in many localities, but the FDA is not very happy about it. Twinkies are fine though.

Revenant said...But to place a nonsensical hypothetical in front of the nominee..You could have argued it was a nonsensical hypothetical if Congress hadn't already, this year, passed a law mandating that people purchase things and Congress thinks are good for them"

That is just bullshit you fool. The health care reform is NOT mandating what you eat or buy to eat. It isn't an illustrative example...it is nothing but gibberish. I pay through the nose for health insurance because and directly because so many use the emergency rooms as their family doctor just for starters. Hospital costs are out of sight as a result of trying to recoup the money lost in primary care. In a time of great shortage, hospitals close because they don't have the money...and it trickles all through the system, in payment schemes, in doctors fleecing the system to cover costs or be greedy--all the way to $5 aspirin. It was also about trying to get US healthcare into the top 25 in keeping our population alive...

It had nothing to do, even on an "example basis" with dictating what food is bought and eaten. NOTHING.

I'm really sorry that there are people wandering around with such simple minds as to 1. not be able to see a straw dog when it appears and 2. are so out of touch that they grasp at any straw offered them.

HD: You and I, for the second time in our lives, have been required to own a piece of the Chyrsler Motor Car Company. That may be just fine with you but I think and have always thought they built crappy cars.

HDHouse said..."The health care reform is NOT mandating what you eat or buy to eat. It isn't an illustrative example."

The UK has moved toward doing exactly that, under precisely the same methods as the US has now adopted. In the interest of "health", the gummint will demand to prescribe or proscribe all sorts of behaviors, including what we eat, what our entertainment is, what thoughts we are allowed to express, where we live, and what we drive.

Michael said..."HD: You and I, for the second time in our lives, have been required to own a piece of the Chyrsler Motor Car Company..."

Show me your share certificate and I'll show you mine.

You know that Coburn was reaching at health care not car saving....and we have been proping up corporations for decades....ask George and Dick for some shares in Dick's companys...we essentially invested in them, kept them safe, kept them afloat....while they electrocuted soldiers taking showers in Iraq....

Pogo said..." the gummint will demand to prescribe or proscribe all sorts of behaviors, including what we eat, what our entertainment is, what thoughts we are allowed to express, where we live, and what we drive."

really? do you have anything on earth to back that up?...wow, way too much reading pamphlets in the bathroom for you pogo.

HD: That is the point, sir. You were required as a taxpayer to be an "investor" and you did not get a stock certificate. That is the very point I am asking you to contemplate as a point of what the government can do, how they can do it, and what they have to give you for it.

Michael said...HD: That is the point, sir. You were required as a taxpayer to be an "investor" and you did not get a stock certificate..."

oh Michael....calm down. I own perhaps a dozen stocks. i don't have the certificates here with me but I could get them perhaps but for what benefit? It is an electronic age. go stick you finger in a socket and find out.

"Rev -- Can you kick your nine-year-old child out of your house? Why not? After all, there is no formal tenancy agreement.

Under common law, yes, I'm pretty sure you can do exactly that."

At common law a husband was responsible for the maintenance of his wife and children. I suppose he could kick then out of his house if he wanted to, but only if he made other arrangemnents to house, feed, and clothe them.

"is the "modern left" just down the aisle from the modern washer and dryer? what on earth are you talking about? do you know? sprechen sie english"

You're either an idiot or disingenuous.

Judging by your remarks in the thread about McCrystal I'd go with the latter as nobody could possibly be that stupid and still know how to use a computer.

But on the off chance that it's the former I'll simply say that the modern left is characterized by the belief that most people are unable to make proper decisions about important matters absent govt. oversight.

Does such a definition mean that I consider some who are labeled by the media as being on the "right" to actually be leftists? Yes (e.g Huckabee).

If you prefer a different terms then perhaps "statist" or "nanny stater" would be more to your liking. Either way it is authoritarian in nature due to the underlying belief in the superiority of govt. control.

"Therefore, you must admit, if you use property rights as your analogy, that a pregnant woman wishing to get an abortion must get it approved by a judge.

Not as I understand it. If you come home and find a stranger in your house, you don't have to go to court to seek permission to remove him. You can -- with the exception of those jurisdictions which have curtailed property rights -- grab him and throw his ass out the door, and if he has a problem with that he can take YOU to court for redress."

To compare a fetus in its mother's womb to a trespasser in someone else's home is libertarianism gone mad. A woman does not have an arm's length relationship to her children, whether they are born or unborn. Nature set things up that way, and political theory can't change that.

HD: You are so bloody thick!! I will try again. The subject of this thread is what the govt. can make you do. Can they, for instance, make you eat certain things. I made the point that they "made" you invest in Chrysler. They called it an investment and they said you, the taxpayer, would get your money back. We, you and I, have bailed out this crap company two times. You don't own shit, HD, that is the point. The government made "you" make the investment, did not give you an instrument of ownership, and then went on its merry way. Of course most stocks are owned in street names and of course you don't have the certificates for most, HD< but unless you bought them yourself you do not have shares in Chrysler that you can sell when you want to. Got it yet?

As for the clip, I imagine, as a physician, Coburn was alluding to the healthcare bill and its mandate for insurance. Kagan's answer in that respect is very interesting: Its not whether the law is "smart" or "stupid" it whether its constitutional

As for the discussion on this thread I note that Seven began with this:

"I wish to speak to the substance of that clip itself"

and M+M's initial response is:"Coburn is the worst form of hack... this is the same guy who wanted to stop the FDA from testing RU-486"

Its as if the cities of Boston and New York held a joint conference on urban policy and those in the crowd (read: HD, M+M, Ritmo et al) kept shouting:YANKEES SUCK!! YANKEES SUCK!!

Kagan agrees that congress can pass any goddam law they want, including a requirement that we eat vegetables every day.

BINGO! Pogo takes us back to the heart of the matter on a thread that was hijacked by lefty freaks. And yet on the same thread, Althouse, who, based on her posts at least, seems to favor Kagan's ascent to the court, says The government needs to keep its hands off our bodies. Don't tell me our elites' schizoid stance can't drive a peasant nuts.

I agree that judicial restraint is a virtue, but it is certainly a secondary one. The higher priority is actual enforcement of our constitution. The U.S. constitution is one of enumerated powers and it is the responsibility of all three branches--especially the judicial one--(and the people) to carefully guard against violations.

I believe courtesy is a virtue in policemen, but I'd not want one who put courtesy ahead of enforcing the law.

What a weird thread. More miserable ideas on one page than I've seen in a while.

Marbury isn't dumb. John Marshall's decision in Marbury followed directly and logically from the realization that the Constitution is a law, and since one of the functions of the federal judiciary is to resolve conflicts between laws, it is a legit function of the Supreme Court to resolve conflicts between the Constitution and any other laws. It is purely by fortunate chance that this insight was consistent with the concept of "checks and balances."

Anything which prevents any branch of government from becoming too full of itself is probably a good thing for the rest of us. We know from two centuries of experience that no branch is very good if left on its own.

I have a friend, a conservative one, who lives in Oklahoma and says that he is the laughing stock of the state. -Victoria

As a conservative who lives in Oklahoma, I can tell you that your friend must only have liberals as friends. The truth is that we Oklahoma conservatives get a little bored around election time because the choice to vote for Coburn is so easy to make. Our biggest question is why haven't all of you in other states figured that out?

For God's sake, is Seven Machos the only person who understands basic logic? The question of whether the gov't has the constitutional power to order you to eat vegetables is very, very important, because it asks, by example, whether there is ANY conceivable limit on what the government can force you to do under the Commerce clause. It doesn't matter in the slightest whether this example makes sense, in fact its very nonsensicality is designed to beg the question: have our rights become so withered that the gov't could force us to do such ridiculous things?

I pay through the nose for health insurance because and directly because so many use the emergency rooms as their family doctor just for starters. Hospital costs are out of sight as a result of trying to recoup the money lost in primary care.

This has to be the silliest talking point out there. I have yet to see a single study that suggests in any way that unpaid emergency room care is a major driver of medical costs.

Dave: You are quite right that the issue here is already very close to home. We have laws of all sorts that interfere with individual rights in the name of the public good. An hour of public exercise daily would be good for all. I am sure that there are many who would pass this into law in an instant if they could. Ditto removing right wing talk radio programs. Ditto a thousand other things that could be brought to mind.

Congress could pass an abortion law tomorrow, and have it pass constitutional muster. Congress has authority to set jurisdiction for the courts. Any law may include a section that removes review of the law from the jurisdiction of SCOTUS.

Interstate Commerce Clause gives congress authority to regulate commerce, which means to make regular, or to provide common rules. That is different from pretensions that congress can control trade. Free trade between the states was and is an unenumerated right.

The key to the system of common law is checks and balances. When a court makes a bad decision based on existing case law, new legislative law can be created to override the case law. When SCOTUS makes a bad decision (classic case is Dred Scott) new constituional law can be created to correct the constitution, and presidential pardon can correct the bad result from the bad decision.

Anybody remember this? Perhaps Coburn is not as moronic as you think...

Singer Jimmy Buffett will never find his "lost shaker of salt" in New York City or any other place in the country if Mayor Michael Bloomberg has his way. The mayor is waging a war on salt and he wants food manufacturers and restaurants to join his army … or else.

It's ironic that the war on salt began on the very day the city was spreading tons of it on the streets to fight a snow storm, but in Bloomberg's view there is good salt … and bad salt.

City officials said that people don't realize the salt content of the things they buy in the supermarket. For example, potato chips you would think are the saltiest thing in the store but they have only 180 milligrams per serving. Turkey meatballs, on the other hand, have 660 milligrams per serving. Marble cake has 300 per serving and chicken noodle soup has nearly 1,400 milligrams of salt per serving.

The city's plan is to get food manufacturers in the United States to agree to gradually start reducing salt content until it reaches a 50 percent cut in 10 years.

For HD and the others, can Congress pass a law that requires you to buy three servings of fruit and vegetables per day? What you do with it is your business, and such a law would certainly affect interstate commerce, would it pass constitutional muster under the Commerce Clause?

Remember, in Gonzales v. Raich the SCOTUS said the Commerce Clause was expansive enlough to allow federal regulation of home-grown marijuana specifically cultivated for intrastate use on the grounds that it could affect interstate trade of the same. Explain why the same reasoning could not be applied to baking your own bread or gorwing your own strawberries?

The sad fact is that, at least since the '40s, Congress and SCOTUS have been the Commerce Clause as a one-note constitutional samba to write and justify any law they think is a good idea, a proud tradition Kagan seems eager to uphold.

It wouldn't be much fun playing musical chairs with you jayne.....every chair would have to be set up in relationship to some distant right right right chair..the Carnac the Magnificent chair of rightness..and the pecking order flows from that..I get it now. Thanks.

One particularly silly trait you might want to do away with is assigning motives and definitions to those you disagree with and only in the most juvenile and generalized terms. In particular, the use of the word "all" as in "all liberals" immediately identifies you as a clueless puff...Jayne, darlin', nobody uses the term "all"...its just so, so, so unfashionable....don'tcha know?

If Obamacare's mandates are constitutional, the next step will be for the campaign against obesity to get to work on your diet. You eat too much meat, fat, and salt, and the Federal Government needs to put a stop to that. Cutting your meat consumption will also cut the amount of green house gas that the cows fart.

You will be issued a meal plan and recipes, and you will like it.

Of course, Kagan, who clearly lives on Doritos and Chunky Monkey, will have a sever conflict of interest in ruling on the challenges to the constitutionality of the food law.

I only got about halfway through this thread before I had to post and run, so apologies in advance if this was addressed.

But I don't know why some people think that it's absurd to contemplate the federal government telling (forcing) people what to eat. It's already happened. New York City and other jurisdictions have banned the use of transfats in food preparation. That's probably a good outcome given the solid evidence of its harm, but government coercion is the wrong way to do it and these things always start out with good intentions, especially in the eyes of the scolds who promote them.

Next up is salt. Mayor Bloomberg is on a quest to "encourage" a cutback on salt levels in food, an issue where if you nose around a bit you'll find sound, rational disagreement on its relationship to hypertension and heart disease. A bill was actually introduced in Albany to ban salt. It went nowhere but that move shows which way the wind is blowing. Meanwhile the FDA is gearing up to force salt cutbacks:The government intends to work with the food industry and health experts to reduce sodium gradually over a period of years to adjust the American palate to a less salty diet, according to FDA sources.

I'll decide all about my own damn palate myself, thankyouverymuch.

Especially if the abomination of Obamacare isn't overturned, can anyone seriously doubt there will be efforts to control what people eat given the (sometimes surprisingly dubious) belief among health professionals about the relationship between "artery-clogging" high-fat food and heart disease? I'm sorry, we can't force taxpayers to fund the angioplasty you're going to need in 15 years. Cut back on the hamburgers.

Please. The question is about the healthcare bill, which was passed as being constitutional under the commerce clause. Does anybody remember when someone asked Nancy Pelosi where in the constitution she found the right to make someone buy insurance? And they came up with the commerce clause.

Kagan agrees that Congress can pass any goddamn law they want, including a requirement that we eat vegetables every day.

Pogo is deceived by his very own powers of observation and believes that Kagan did anything of the sort.

The constitutional viability of every challenged law need not rest on the same grounds. There are actually different clauses, and rights, guaranteed in the constitution. Didn't ya know that, Pogo?

One hypothetical law, so ridiculous that Kagan is probably too distracted by the paranoia of the right in suggesting it to quickly and intelligently comment on its constitutionality, might be constitutional. Again, it's unclear if Kagan had a chance to think through its constitutional implications as she was probably distracted by the idea of a mind so far gone as to even contemplate it.

Even if she thinks it's constitutional, for Pogo to propose that this means she would uphold any other law as constitutional, is a sign of reasoning too weak to feel anything but pity for both it and the paranoia that fueled it.

Since you are such a smart little cookie, why don't you ask Wikipedia to redact what they said in prefacing Scalia's abstruse nonsense? Because to me, this looks like Scalia's sticking with Wickard - and a very abusive interpretation of the Commerce Clause:

Justice Scalia wrote a separate concurrence that aimed to differentiate the decision from the more recent results of United States v. Lopez and United States v. Morrison. Although Scalia voted in favor of limits on the Commerce Clause in the Lopez and Morrison decisions, he said that his understanding of the Necessary and Proper Clause caused him to vote for the Commerce Clause with Raich

Stop thinking you're so above me if your profession or your understanding of it is so far beyond the reach of public understanding that you can't conclude what I did from that quote above.

And also, stop being an asshole. I know you think you're better than everyone, but you're not winning. Neither is Coburn. And Scalia's reputation (in your eyes) hangs in the balance with that quote above. Either kindly re-interpret it for me in a way that doesn't make a mockery of the English language, or go and edit the entry a la your mascot Stephen Colbert.

This has to be the silliest talking point out there. I have yet to see a single study that suggests in any way that unpaid emergency room care is a major driver of medical costs.

while unfunded ER care can be a problem, the majority of folks who use the ER for primary care issues HAVE insurance (I can provide citations if you like.) The issue is the cost to the system of ER care for, say, bronchitis as opposed to office care. So yes to HD's point that does raise the cost of healthcare.

Unfortunately, it is not THE reason for rising healthcare costs (not that there's necessarily one single cause.) The bigger issues are expensive technology, overuse of surgery with limited benefit, hospital care over care in a less intense setting. A core issue related to this original point above is the paucity of primary care. In most "successful" system about 2/3 of physicians are primary care, 1/3 specialists. That ratio is reversed in the US.

Proving once more how indispensable he is to our national debate, Rush Limbaugh has weighed in on the "having your Kagan eat it, too" kerfuffle. His take: liberals get so exercised about 'reproductive rights' -- what about our 'digestive rights'???

Machos' self-defined res ipsa loquitur is best answered by Scalia's res ipsa loquitur. Besides, he's since shut up - and probably for good reason:

Justice Scalia, concurring in the judgment.

I agree with the Court's holding that the Controlled Substances Act (CSA) may validly be applied to respondents' cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced.

(...)

Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

(...)

Today's principal dissent objects that, by permitting Congress to regulate activities necessary to effective interstate regulation, the Court reduces Lopez and Morrison to "little more than a drafting guide." Post, at 5 (opinion of O'Connor, J.). I think that criticism unjustified.

(...)

Lopez and Morrison affirm that Congress may not regulate certain "purely local" activity within the States based solely on the attenuated effect that such activity may have in the interstate market. But those decisions do not declare noneconomic intrastate activities to be categorically beyond the reach of the Federal Government. Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation; Lopez expressly disclaimed that it was such a case, 514 U. S., at 561, and Morrison did not even discuss the possibility that it was

(...)

The application of these principles to the case before us is straightforward. In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this.

(...)

I thus agree with the Court that, however the class of regulated activities is subdivided, Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market "could be undercut" if those activities were excepted from its general scheme of regulation. See Lopez, 514 U. S., at 561. That is sufficient to authorize the application of the CSA to respondents.

You should really read the opinion, Machos. There goes your hero. Watch him as he goes.

What's it got to do with Wickert?(sic)

Wickard, as I understood it, was the original precedent declaring that non-economic activity could be addressed by the commerce clause. Scalia doesn't dispute this, and he reverts to a more prohibitive interpretation of the commerce clause in Raich by deviating from the restrictions on it that he placed in two later precedents. What Wickard has to do with it is the "non-economic" activity of simple possession, which he addresses and upholds.

In any event, I think this was originally brought up within the context of abortion laws varying state by state. I apologize if Wickard merely established the precedent of non-economic activity in one state being prohibited if an argument could be made that it affected commercial activity in another. If a woman receives an abortion legally in a state that, hypothetically, decides to retain it following a decision to reverse Roe v. Wade, I'm reasonably sure that such a scenario could be subject to regulation under the commerce clause. If the reason for that is due to a precedent or reasoning even less complicated and recent than what occurred in Wickard, then my bad for mentioning it. But that's all beside the point, right? The point is how restrictive of our rights the commerce clause can be. And that restriction, when applied to the hypothetical that was raised, is something that obviously the right-wing wouldn't be challenged, if Scalia's more famous decisions have any bearing on this.

But I think the issue here is that Coburn isn't a jurist. He isn't even a lawyer. He's a physician who was elected senator from a very provincial state. The point is that he is a political actor and that anyone would assume he decides to pose questions of a SCOTUS nominee that reflect some sort of significant political import.

He could have done that. Instead, he chooses to use arguments so silly and hyperbolic that they stretch the meaning of the world "hypothetical" into a Bizarro world scenario. Perhaps righties think the eminent legal prescription of what we put into our mouths is eminent under Democratic rule and that this represents the gravest and most serious threat to our liberties imaginable.

But I tell you that he is dreaming and that the moderate left, middle, and probably even a good enough portion of the moderate right will realize how ridiculous such a line of reasoning is.

None of this has anything to do with the commerce clause as his question didn't seem to imply that it would (or make reference to reality as we know it, for that matter - but that's a different point). So it's all pretty moot. At root. But regardless, he doesn't know what he's talking about, and has a hell of a lot worse understanding of the law than even I do. So why are you propping him up as someone who can take an abstract case regarding rights to the people? You really think this resonates with the right?

Maybe it does with the far right, but there is a danger in making such paranoid hypotheticals the basis for your attack on the other party and its nominees.

If the exchange between Coburn and Kagan was whether the Constitution was the appropriate remedy for the rank stupidity of the people and whom they've chosen to represent them, then you're making a statement on what you'll accept in your representatives that the left apparently wouldn't.

The constitution is not a guarantee against a republic of imbeciles.

This exchange backfires on the right (if they believe in its power) in more ways than they care to see.

I find it intriguing that (1) Ritmo Urban Legend calls me an elitist for knowing the law, yet (2) he chastises Coburn for being a physician and talking about the law, all the while (3) he is arguing Coburn's position that the Commerce Clause does not allow Congress to pass laws where there is neither (a) interstateness nor (b) commerce.

For so many people on the left, trying to be on the correct team is the most important thing. It must be hard, though, when Scalia concurs with Ginsburg about a law that Bush's DEA prosecuted and about which Thomas dissented.

I can't seriously believe you think that Federal dictates of individual behavior are somehow beyond the pale.

Sounds like the language is getting murky, Blake. I'm sure you have no problem on dictates regulating the behavior of murdering people.

Whatever - unless we're arguing from the libertarian ideal of laws that only govern what you can do to others, then all of this is moot. I'm sure we both recognize such a standard, and don't need some b.s. legalese to ground our ideas in to debate it.

Once you care to correctly characterize what I've said, then I'll bother believing that you are intrigued by anything I had to say, Machos.

Perhaps there is a constitutional allowance for the law that Coburn fantasized and that said allowance doesn't require the commerce clause. Who cares?

Oh, that's right. You do. And Matt Drudge does. The rest of us are just intrigued by your obsession with how far you can stretch the hypotheticals at the expense of reality. Well, we're not intrigued by that really. We are however quite intrigued by the succession of themes to which your paranoia leads you. What's next, questioning a nominee over the right that the grey aliens have asserted to insert anal probes into him and into you?

The left is way ahead of you on embracing complexity and how individual opinions differ not only within an ideological claque but within any given person's mind. Well, within any given person with a mind, that is. They don't always need strict rules for figuring out how to do so, either. Maybe your handicap makes you jealous of that.

And since you had to get off on the 1 through 3 and a to b thing, I'll humor you and let you think you had a point with any of that. Except when it comes to your banging on about Coburn being a doctor. I don't care if he's a doctor, let alone not a lawyer. I do care that he doesn't think the distinction between constitutionality and reality or feasibility is an important one, and that it shouldn't be to a politician in a republic purporting to address the people's needs. Well, come to think of it, I care that you're too smug to acknowledge that distinction either. But what do you care? You've got an election to win. No form of paranoia and esoteric randomness will get in the way of that.

IN any event, Kagan exemplified the fact that Republicans today have no grasp of policy. They want to reduce every regulation to an infringement of some right. But some policies have more to do with the issues at hand than with rights, and they don't get that. It's no wonder that with an attitude like that they are not trusted to govern.

This Coburn bs will not work. If you want to discuss Raich, that's a different matter.

c3 The problem with a lot of people quoting citations in regards to hospital ERs is this, most who quote them in threads like this don't know what they are talking about.

I admit that in some places in the country, there are hospital ERs that have more insured patients than those who have no insurance or under insured. That is not the case in most Chicago hospitals where the ratio between insured patients and non-insured in the ER is 1:5 or more and I could argue that in the border states of Texas, California, New Mexico and in liberal states like New York and Massachusetts, the ratio of insured patients vs non-insured being treated is around 1:15 or greater coming through the ER door. Second, once a hospital ER gets underfunded, it usually meant that the hospital will soon close due to bankruptcy.

The reason why medical devices like MRI, CT scans, PET scan , robotic surgical machines and etc are so expensive is this. Small to medium companies who can build the same things better and cheaper are either discouraged by the FDA ( think medical trials that run into the millions and years) as well as the established companies who uses their political connections to discourage or bar these small and medium size companies from competing.

Second, there is no such thing as over use of surgery. I will tell you why. With notable exceptions, the vast majority of surgeons will not open a patient up just because they want it or the family wants it or the patient wants it. They check and double check the radiological findings, the blood works results as well as the condition of the patient. If the patient is not stable or is not a suitable candidate for surgery, the vast majority of surgeons will decline to operate even if the family and patient comes down to their knees and request the surgical procedure. C3, unnecessary surgeries are lawsuits waiting to happen and many surgeons want to avoid those lawsuits waiting to happen.

What makes hospitalization expensive for the patients and their families is this. The CYA mentality of medical staff and hospitals in order to avoid being sued. What makes it worse are the false expectations of patients and their families and their unrealistic demands they foist on the doctors and the rest of the hospital staff and threatening to sue them if they don't get their way.

Truth be told, there are many specialists who are also Primary care physicians. People who work in hospitals as house staff knows that.

Ritmo's position summed up nicely sums up the vacuity of the left: Ritmo would like the Commerce Clause to apply to things he wants, such as making everyone buy insurance, but not things he doesn't want, such as a federal band on the sale and consumption of marijuana.

There is no there there. There is no thought about what interstate means and what commerce entails. There isn't even really a philosophy. There is only taste in its most primitive sense -- a vestige of something approaching thoughts about things.

And a whole lot of meaningless words, as if the sheer number of words can hide the utter lack of cogency.

"If the exchange between Coburn and Kagan was whether the Constitution was the appropriate remedy for the rank stupidity of the people and whom they've chosen to represent them, then you're making a statement on what you'll accept in your representatives that the left apparently wouldn't. "

Oh my God, are you really this dense? That is NOT what the exchange was all about. It was to determine if Kagan believes there are ANY limits to Congress to regulate any and all parts of our lives. Simple as that. Does she or does she not think there are any limits on congress.

All those words in defense of a hypothetical sense of infinitely consistent structure, and Machos never bothered to realize that famous truism:

A foolish consistency is the hobgoblin of little minds.

Which nicely sums up why the right isn't and won't be trusted to govern anytime soon.

Oh, BTW Mr Machos. If you don't see a difference between denying someone life-saving medication and giving them a tax rebate for helping to bring down the cost of health insurance, then I propose that the reason is that you are pro-death. Except for non-sentient beings. How's that for a governing philosophy.

Of course, any fool could find a legal rationale for trumping the commerce clause with an appeal to allowing a person to save her own life or subsidizing the cost of everyone's care. But not Machos. Or perhaps he just wanted to hear me say it out loud so that he could pretend to be outraged, simply outraged! by the lack of legal sophistication required to come up with such an obvious, realistic and agreeable rationale for one's position.

Keep up with the inhumane treatment of the people, Machos. They will love you for it. Just like they loved Hitler. Oh, wait! That was the line your demagogue-in-chief, Glenn Beck, likes to use to characterize the Democrats. My bad.

Now kindly fuck off. Your sophistry and pretensions to not understanding positions as straightforward as mine reek of the desperation of a partisan with ideas too expired and rotten to get any mileage out of them. And that's not my fault.